Juvenility Claim Can Be Raised Even After Conviction: Supreme Court Directs UP Govt To Verify 23 Agra Prisoners' Claim

The bench of Justices Indira Banerjee and JK Maheshwari was hearing a writ petition preferred by 23 prisoners who have been undergoing imprisonment in Agra Central Jail for over 6 years & 20 years. Prisoners in their writ filed through Advocate Rishi Malhotra had sought for issuance of directions to the State of Uttar Pradesh to verify their claim of juvenility.

Observing that delay in raising the claim of juvenility could not be a ground for rejection of the petition, bench in their order said,

"All the petitioners have been convicted for various offences and have been undergoing imprisonment in Agra Central Jail. All petitioners have undergone imprisonment for over 6 years & some of them have even gone imprisonment for over 20 years. It is claimed that petitioner 14 has undergone imprisonment for 26 years, 16 for 22.8 years, 9 for 23.6 years. The particulars of the DOB as claimed in the WP, date of incident, docs relied upon by them in support of their claim to age, Age as on date of incident, status of criminal case and the period of imprisonment undergone as on Aug 12, 2021 are set forth in a chart which is part of the WP and is extracted herein. It is well settled that claims of juvenility can be raised even after conviction & even before this court. Delay in raising this claim cannot be ground for rejection. Petitioners have drawn attention of this court to their plight. They claim that they were all well below 18 years on the date of commission of the offence. The Maximum period of incarceration under JJ is 3 years & that too in special juvenile homes."

While disposing the petition the bench also directed the State of Uttar Pradesh to get the petitioner's claim of juvenility verified by the concerned Sessions Court in which their case was decided within a period of 1 month from the date of order.

Directions were also issued to the state to take steps for the immediate release of the petitioner(s) if all or any one of them were found to be juvenile.

Appearing for the petitioners, Advocate Rishi Malhotra contended that the petitioners who are languishing in Agra Central Jail had already undergone incarceration for periods ranging from 12 years to 25 years.

Pressing on issuance of directions for conducting an enquiry about the veracity of documents placed on record by the petitioners regarding their claim of juvenility, Counsel further contended that the maximum period of incarceration under section 15 r/w section 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000 has been mentioned as 3 years and that too in Juvenile Homes.

On Advocate Malhotra's submission, Justice Maheshwari asked the counsel for not seeking any relief under Article 32 if an appeal was already preferred against conviction.

"In these matters, SLP has also been dismissed. Let them verify my claim of juvenility," Advocate Rishi Malhotra replied.

Appearing for the State of Uttar Pradesh Additional Advocate General Garima Prashad submitted that in the present matter, the issue of juvenility of the petitioners had not been given at all.

"If a person is found to be juvenile, the person can't be kept in custody for more than 3 years irrespective of the nature of offence. The claim of juvenility has to be looked into," Justice Indira Banerjee the presiding judge of the bench orally remarked.

"We're not releasing them without examining their claim of juvenility," Justice Banerjee said on AAG's submission that the petitioners had not been declared as juvenile.

On AAG's submissions that the petitioners had not taken the plea of juvenility even before the court where their appeal against conviction was pending, Justice Indira Banerjee further said that the State of Uttar Pradesh should not be taking any technical objections in this regards.

"Plea can be taken at any stage. Yes, they are still before the court & pleas of juvenility can be taken. Matter had come up before Hon'ble CJ also," AAG Prashad replied.

Relying on the Top Court's observation in Abuzar Hussain v State of West Bengal 2012 (10) SCC 489 which dealt with the stage at which claim of juvenility could be raised, Advocate Rishi Malhotra at this juncture submitted that he was not seeking for issuance of directions only to the Juvenile Justice Board to determine their juvenility but only praying for issuance of directions for determination of the petitioner(s) juvenility.

"Since they've been tried as adults & in some cases there have been convictions also, we'll direct the District Judge to do it," Justice Banerjee remarked.

Case Title: Rupesh and Others v State of Uttar Pradesh| WP(Crl) No 382/2021